Regionalising the Common Fisheries Policy: context, content and controversy

Abstract

The European Union (EU) has been slow to recognise the benefits of regionalising the Common Fisheries Policy (CFP) and even now the Commission's advocacy appears to lack the assuredness of conviction. To understand this reluctant conversion, the paper explains how increasing pressures for radical reform - enlargement, increasing diversity, expanding scope, budgetary pressures, the quest for good governance and an awareness of the CFP as a failing system – have encountered powerful forces for conservatism both within the legal structures of the EU and the development of the CFP itself which discourage transformational change. The paper traces the history of regionalisation up to its inclusion in the 2012 reform agenda and explores alternative forms of regionalising EU fisheries management and some of the key issues surrounding the successful completion of the project. Regionalising the CFP is seen not as an end in itself but as a means of repairing its damaged reputation and securing the effective delivery of the Policy's objectives.

Keywords

European UnionMember StateFishery ManagementGreen PaperFishery Policy

Introduction

The European Union's Common Fisheries Policy (CFP) presently faces the most important challenge of its thirty year history. Can it bring about the measure of change needed to secure the foundations for sustainable fisheries, guarantee long term viability for Europe's fishing industries and fisheries dependent regions and redeem its seriously damaged reputation among fishermen , while remaining true to the principles, aims and norms of the wider European project? To do so it will need to break with its previous history of incremental path dependent change, challenge some of the deeply embedded assumptions concerning fisheries policy and embrace fundamental, transformational reforms.

The complex physical and political geographies of the European seas dictate the continuing need for a coherent approach to the management of fish stocks that are shared among many coastal states. Future policy must set out the common aims and objectives, the underlying principles and a broad, overarching strategy for sustainable management of the living resources of the sea. But it must also make provision for the transfer of responsibility for much of the detailed management to the regions, partly to relieve central management of some of the burden of micromanaging the fisheries but also to bring decision making closer to those most directly affected and with the knowledge and experience of specific fisheries. This is not a simple task. Regionalising the CFP, through a geographical framework synonymous with the major marine ecosystems of the European seas, is seen as an essential element of the reform process. Not only will it create a more logical framework for decision making, but it should also provide an effective mechanism for delivering other elements of the reform package.

The aim of the paper is to explore the rationale behind proposals for regionalising the CFP, commenting not only on the pressures that have helped to build the momentum for reform but also on some of the deeply embedded conventions of policy making that make regionalisation a contentious issue. It begins by describing the origins of regionalisation in twentieth century geographical thought and the circumstances in the latter part of the century that provided the impetus for applying this idea to fisheries management. The second part of the paper traces the idea of regionalising the CFP as an intellectual concept and a pragmatic solution to the problems facing EU fisheries at the start of the twenty-first century. Finally, the unresolved organisational, political and 'constitutional' issues that may still inhibit its adoption are examined. The scope of the paper has deliberately been kept as broad as possible in the hope that it will not only furnish a robust narrative in support of the argument for regionalisation but also provide a useful context for the papers that follow.

Regions, regionalism and regionalisation

The idea of the region – 'an area considered as a unit for geographical, functional or cultural reasons' (Collins, [1986]) – as an important organisational framework for human activity came to prominence with the influential French school of geography led by Paul Vidal de la Blache, Jean Bruhnes and Lucien Febvre in the early years of the twentieth century. Physiographic or 'formal' regions were identified on widely differing geographical scales ranging from world regions used to denote large tracts of land with broadly similar climate or vegetation characteristics to very much smaller areas such as the French pays, often imbued with 'personality' and associated with distinctive landscapes and traditional agrarian cultures. Later the term 'functional region' was used to describe areas unified through a particular administrative or management function such as local government, water catchment management, health administration or economic planning.

In the context of fisheries and their management, regions can be both formal and functional: formal in the sense that that the region may describe a particular marine ecosystem and be neatly delineated by a well defined sea basin, and also functional in that it may be designated as an administrative unit for the purpose of managing the use of living resources of the sea.

Boundaries have frequently proved a contentious issue whether applied to the definition of formal or functional regions. But whereas in terrestrial space a line may be drawn and vested with meaning – albeit possibly contested and maybe temporary – this is rarely the case in marine space where boundaries tend to be quite literally fluid. Europe's complex, irregular and fragmented coastal morphology comes to the aid of region building. Sea basins – the Baltic and North Seas in the north and west of Europe and the Mediterranean and Black Seas to the south and east – are naturally defined regions, almost but not quite self-contained and distinguished from the neighbouring seas by ecosystem characteristics. By contrast, Europe's Atlantic front lacks any easily identifiable boundaries and use has to be made of the somewhat arbitrary ICES rectangles and the 200 mile limits in order to separate north western from south western waters. Almost all large scale regions are capable of further subdivision: the Baltic Sea, for example, exhibits significant north–south variations in salinity and water temperature which translate into different ecosystem characteristics and distinctive fisheries.

Of crucial importance to the efficacy of functional regions is their legal status. On land most administrative regions are statutory designations whose boundaries, functions and powers are clearly defined in law and which are therefore accorded full recognition by the state. When it comes to maritime regions their status is often much less clear, due largely to issues of national sovereignty and communal or individual use rights. Since the mid-1970s, freedom of the high seas has been constrained by the near universal declaration of 200 mile Exclusive Economic Zones (EEZs) which reserve the rights for fishing and the exploration and development of mineral resources to the coastal state. Sea fisheries were widely deemed to be subject to common use rights with the state assuming a duty of care and responsibility for their management.

In the case of the EU the situation is still further complicated. For purposes of fisheries management and exploitation, the EEZs of all coastal member states were merged to form a single EU fishing zone, sometimes referred to as the 'common pond', to be managed centrally through a common fisheries policy and with nominal freedom of access granted to all member states' fishing vessels, though in practice access is restricted to those member states with appropriate quota entitlements based on historic fishing rights. Further restrictions were imposed through a derogation in respect of inshore waters. An inner zero-six nautical mile zone was reserved for the exclusive use of the coastal state and access to an outer six-twelve nautical mile zone was permitted only to vessels from member states with historic access agreements.

Rather more problematic in the context of regionalising the CFP is the fact that the European Treaties governing the conduct of EU policy making fail to recognise regions as part of the executive process. The EU is made up of the European institutions (the Commission, Council of Ministers, European Parliament and European Court of Justice) and the member states. Only these institutions have a mandate to act in the formulation and implementation of policy. Where regions do have a role to play in EU policy making it is only in an advisory capacity, as with the Committee of the Regions. A regional management organisation for the Baltic or North Sea, for example, having an international identity, drawing on the collaboration of several member states and exercising decision making powers would be ultra vires.

Whereas the region may be considered a fairly neutral concept, regionalism – defined as 'the division of a country into administrative regions having partial autonomy; the advocacy of such divisions' (Collins, [1986]) – is a more loaded term. Strongly associated with territoriality, it carries a sense of occupation, ownership and jurisdiction which, in the context of marine space, implies questions of third party access. Regionalism has also become a synonym for countervailing forces acting in opposition to those emanating from the centre and for separatist movements striving for greater autonomy or for secession. It is closely bound up with core:periphery relations and the concept of 'internal colonialism' (Hechter, [1975]); geographically, Europe's fisheries dependent regions are by definition part of the periphery. The western and southern margins of the EU in many instances suffer a degree of economic deprivation, the outward flow of population and resources, high rates of unemployment and low levels of income. They are also remote from the economic core and the political centre of the EU. In recent years these coastal areas have been the net beneficiaries of internal transfer payments under the EU's Cohesion Programme and there seems little risk of secessionist tendencies developing in the coastal periphery.

In general, devolution and the granting of greater autonomy to the regions can be seen as a means whereby the state is able to further democratise decision making while retaining hegemony over all its territory ([Stacey, 2001]). In the case of the United Kingdom, for example, devolving powers to Scotland, Wales and Northern Ireland was regarded as a means of maintaining the Union rather than destroying it ([Bogdanor, 1999]). Devolved government can provide not only a more efficient delivery system for policy but also enhance local democracy and create a more solid basis of legitimacy for the actions of the state.

Regionalisation is a term not recognised in Collins English Dictionary. Its meaning, however, can be inferred from common usage as the process of decentralising through the transfer of significant areas of decision making from central government institutions to the regions. For regionalisation to add value to the system of governance, it must not be limited to bureaucratic decentralisation involving the relocation of central government's decision making apparatus to regional offices. Some element of devolved responsibility is necessary.

What constitutes the process of regionalising the CFP should become clear as the argument unfolds. Its purpose should, however, be made clear from the start. The aim is to achieve an improved, more democratic and effective management of the use of living resources of the sea on a sustainable basis, with the economic and social benefits enjoyed by society as a whole through increased food security and by the coastal regions in particular in the form of greater viability of the fishing industries and enhanced employment opportunities and living standards for the coastal communities.

Pressures for reform of the common fisheries policy

Enlargement

For much of its relatively short life the CFP has suffered the familiar confrontation between the irresistible forces of change, largely stimulated by external circumstances, and the immovable objects of structural rigidity and ingrained norms of behaviour. Since its inception in the early 1970s the CFP has expanded hugely in terms of geographical jurisdiction, diversity of fisheries and complexity of governance. At the time when the underlying precept of non-discrimination was first applied to fisheries in the shape of equal access – and later after 1976 when the details of the common policy for the conservation of fish stocks in the EU's fishing zone were being negotiated – the common pond was limited in size. What was in effect being negotiated was a regional policy for the prolific mixed fisheries of the North Sea which overlapped into the southern Baltic, Irish Sea and northwest waters.a

Successive phases of expansion of membership in the 1970s, 1980s, 1990s and early years of the twenty-first century added considerably to the geographical area of the EU's exclusive fishing zone and to the diversity of species to be managed.b However, except for the enlargements in the 1970s (Denmark, Ireland and the UK) and 1980s (Spain, Portugal and Greece) the expansion in area was not matched by a proportionate increase in the level of natural resources or the size of the fishing industry. By 2010 the common pond had grown from a single regional sea to an area stretching through forty degrees of latitude from the sub-Arctic waters of the Gulf of Bothnia to the sub-tropical waters around the Canary Islands, and through sixty degrees of longitude from the Azores to the eastern Mediterranean and the Black Sea (Sissenwine and Symes, [2007]). Both the North and Baltic Seas had become almost, but not quite, exclusively EU waters, together with the Atlantic front of Europe from Shetland to the Straits of Gibraltar, with significant outliers in the Atlantic attributable to the Azores and Canary Islands. Only in the Mediterranean and Black Seas was the idea of a common pond diluted by a greater number of non-EU coastal states and by the truncated continental shelf and restriction of the exclusive fishing zone to fifty nautical miles. Looking to the foreseeable future, only the accession of Turkey and the remoter possibilities of Iceland, Norway or Russia joining the EU would add substantially to the size and significance of the common pond.

Over the thirty years from 1982 to 2012 the EU has witnessed a significant increase in the number of species and stocks at risk from overexploitation and, therefore, brought within the remit of the CFP. At the time of the inauguration of the conservation policy there were ten quota regulated species in the European zone, though a number of others were subject to 'precautionary total allowable catches (TACs)' setting global limits to the EU catch but no national quota. By 2012 the number of quota regulated species had risen to thirty-four. Over the same period, quota regulated species in the North Sea had more than trebled from eight to twenty-nine reflecting, at least in part, the deepening crisis of the region's fisheries following the collapse of the gadoid outburst of the 1970s.

Complex decision making

Conservation of fish stocks and their sustainable use formed the cornerstones of the CFP. Preparations for the annual review of TACs, including negotiations within the North East Atlantic Fisheries Commission (NEAFC concerning herring and mackerel and with Norway over the allocation of North Sea TACs, provided a particular focus for the Commission's activities, along with the monitoring and review of technical conservation measures (minimum landing sizes, gear regulations and closed areas). As the Commission's Directorate General (DG) responsible for the CFP, DG Fisheries' workload was further increased, along with the costs of administering the CFP, as a result of broadening the management role to include fleet capacity under the Multi-annual Guidance Programmes (1984–2002) and more recently the introduction of long term recovery and management plans and effort control measures – all intended to buttress the failing conservation policy. By the early years of the twenty-first century, DG Mare, as successor to DG Fisheries, had become embroiled in the micromanagement of fisheries in one of the world's largest and most complex fishing zones.

Enlargement also meant an increase in the number of seats on the Fisheries Council from nine in 1982 to twenty-seven in 2007 with a growing proportion occupied by member states with little or no marine fishing interests. The potential for alliances and blocking minorities to be formed within the Council was increased, as was the 'horse trading' during the critical December Council meeting dealing with the annual review of TACs, leading to compromises rather than effective decision making to tackle the fundamental problems facing the fishing industry. In one sense, the unique constitutional arrangements for decision making in respect of the CFP, with the Commission given exclusive competence for bringing forward policy proposals for stock conservation and the Council of Ministers having sole responsibility for approving or rejecting those proposals, made for relatively efficient decision making – though at considerable cost in terms of good governance. Exclusive competence is granted to the Union in very few areas of EU policy making, including monetary policy within the Euro zone, common commercial policy, customs union and the conservation of marine biological resources under a common fisheries policy inter alia. Even among such strange bedfellows there is a compelling logic to the original choice of fisheries in circumstances where the resources of the regional seas are shared between several competing member states. A coherent approach to their management is essential. Adoption of the Lisbon Treaty ([2007]), confirming the Union's exclusive competence but agreeing to a sharing of responsibility for approving the Commission's policy proposals between the Council and the European Parliament, runs the risk of creating the worst of all possible worlds where centralised policy making is allied with lengthy and less efficient decision making.

Throughout the period of enlargement and increasing complexity of policy making, the CFP has remained remarkably faithful to its initial premise that management of fisheries should be based on output controls (TACs and quota). The very persistence of the management model, underpinned by aquis communautaire – the body of existing EU law that new entrants to the Union must implement – and the principle of relative stability (see below), made it easier for existing member states to embrace expansion without fears that their own positions would be undermined. There was, however, a growing sense among member states that the division of responsibility over fisheries policy was leading to an increasing loss of control over their own fisheries. To posit that the European institutions hold sway over policy formulation while member states are left with the task of implementation is an oversimplification. Beyond the core issue of stock conservation, fisheries was a shared responsibility. Member states retained control over domestic management arrangements, including inshore fisheries and quota management systems whereby national quota was allocated to individual fishing enterprises. But the scope for effective domestic management was becoming progressively squeezed by decisions relating to stock conservation taken at the higher level.

Inertia

Attempts to reform the CFP were constrained by the continuing failure to balance declining fishing opportunities with sufficient reductions in fishing capacity which sustained the enduring crisis of overfishing and depleted resources. Decennial reviews in 1990 and[2000] generated fairly modest proposals for incremental change from the Commission. According to Hegland and Raakjaer ([2008]), reform of the CFP was the victim of path dependence. Limitations imposed by the European Treaties concerning the governance of fisheries, combined with the principle of relative stability embedded within the Policy and a position of stalemate within the Council of Ministers as to the preferred direction of change, implied a deadlocked situation over fundamental reform.

By the beginning of the twenty-first century, the CFP had become the archetype of centralised, top down management driven by reductionist science and limited in scope to a narrow range of technical solutions. As such it was increasingly out of step with current thinking on fisheries governance. The clearest example was the failure to match the rhetoric of an ecosystem based approach to fisheries management with real achievements. Although the[2002] reforms had embraced the concept (CEC, [2002] Article 2.1), the ecosystem approach has remained a latent rather than active influence on fisheries policy, partly because of the absence of an appropriate regional framework in which to operate. It was left to other related areas of marine management (Integrated Maritime Policy and Marine Strategy Framework Directive) to provide a wake-up call for fisheries policy. More fundamentally, the reformulation of issues concerning fisheries and coastal management as 'wicked problems' (Jentoft and Chuenpagdee, [2009]), the elaboration of the theory and practice of interactive governance (Kooiman et al[2005]) and development of resilience theory as a basis for reconstructing the stewardship of natural resources (Berkes, [2010]), all called into question the survival of centralised management systems like the CFP.

It was becoming increasingly clear that the EU common pond had grown too large to be managed by central edict; that the monolithic structures of decision making were unsuited to managing the diversity and sensitivity of marine ecosystems; and that the CFP was perceived by its client population as remote, insensitive, irrelevant and unworkable. In short, failure to adapt to pressures for change meant that the CFP had not only sacrificed the commitment and willing compliance of the fishermen that it was intended to serve but also its legitimacy in the eyes of the wider public concerned for the future well being of their marine inheritance.

Regionalisation: a reluctant reform?

The early years

With regionalisation coming to prominence only quite recently, it is easy to overlook the extent to which regional interests influenced key elements of the CFP in its formative years. During negotiations leading to Council Regulation 170/83 which established the Community system for the conservation and management of fishery resources, the newer 'fish rich' member states won several important concessions.

The most remarkable was a quota allocation system based on 'relative stability'. By creating permanent allocation keys for the seven principal species, based on a formula combining historic track records, compensation for loss of access to distant water grounds and higher levels of fisheries dependence along the EU's north western periphery (Wise, [1984]), the negotiations sought to achieve a measure of relative stability among the fishing nations. What was originally a simple expedient to allay fears that a common policy might impact unfavourably on established fishing industries, relative stability was to assume the guise of a principle far superior to that of equal access and become a stumbling block to fundamental reforms of the CFP in the years ahead. It was further underpinned by confirmation of arrangements under the UK's Treaty of Accession 1973 for exclusive national fishing rights in the zero-six nautical miles fishing zone with an extension to twelve nautical miles in areas more dependent on fishing.

Early sensitivity to regional concerns clearly had more to do with fisheries dependence than with managing the resource. A more blatant example of regional preference was the designation of the Shetland Box in the northern North Sea. Preferential access was granted to 'local' fishermen through restricted licensing of demersal vessels over twenty-six metres ostensibly to protect 'species of special importance … which are biologically sensitive because of their exploitation characteristics' (Council Regulation 170/83, Article 6).

Regionalisation should not be confused with regional preference, though for some the evils of the latter may be multiplied in the former. For the next twenty years the EU was to forsake its apparent concern for economic and social impacts of fishing policy on fisheries dependent areas. Instead attention was directed to ensuring that the basic objectives of the CFP were embraced by a succession of new member states and a harmonised system of management was rolled out across the expanding common pond together with the fine tuning of output controls.

Elsewhere regional management systems were beginning to emerge. On a macroregional level, NEAFC was established in 1959 to recommend annual TACs and other conservation measures to the fourteen signatory states. After 1982, it became more closely associated with the management of fisheries in waters beyond the EEZs and with highly migratory stocks such as herring and mackerel. The contagious spread of EEZs created particularly extensive fishing zones for countries like Canada, USA, Australia and New Zealand, all of which developed their own forms of regional management, with the USA's eight Regional Fisheries Councils established in 1979 probably the most comprehensive. Canada, the USA and Australia shared broadly similar characteristics: large exclusive fishing zones extending into different oceans; diverse mainly underexploited fisheries; and a federal system of government – all very different conditions to those experienced in Europe.

Examples of regional management occurred in Europe including the General Fisheries Council for the Mediterranean (1949) which provided the main institutional framework for cooperation among the twenty Mediterranean countries ([Breuil, 1999]) and the International Baltic Sea Fisheries Council (1973) responsible for deciding annual TACs and allocating quota among the nine Baltic coastal states (Rasmussen, [1998]). At a more local level, devolved arrangements for inshore fisheries management existed in several EU member states, most notably in the UK, France and Spain (Symes et al[2003]).

Tentative steps

Not until the mid 1990s was serious consideration given to a radical reform of the CFP. The Commission's review of the CFP in 1991 had made reference to possible roles for subsidiarity, co-management and regionalisation in restructuring fisheries policy (CEC, [1991]). In the event, the 1992 reform did little more than confirm the existing objectives, instruments and procedures. It was as if there was a conspiracy of inaction in the face of depleted stocks, diminishing returns and reduced employment for fear that reform of the CFP might threaten its disintegration. As Holden ([1994]) observed, the CFP was proving to be a political success but a biological failure.

By the late 1990s, clear dividing lines were beginning to emerge between those who favoured a minimalist approach reaffirming the status quo and those who argued for radical reform involving either increased centralisation of decision making or decentralisation in accordance with the principle of subsidiarity outlined in Article 3b of the Maastricht Treaty 1992. For those supporting further centralisation, Fraga Estevez ([1999]) outlined proposals for ending derogations from the equal access principle and a centrally administered system of individual transferable quota to replace the national quota system, effectively creating a single European fleet.

Devolutionists were divided between those calling for a repatriation of decision making to the member state in the form of coastal state management (Deas, [1999]) and those advocating regionalisation of the CFP. The case for regionalisation had been presented to the Commission in January 1996 through an EU funded AIR project on Devolved and Regional Management Systems for Fisheries (Symes,1996) and disseminated more widely in publications by Symes ([1998, 1999, 2000a]inter alia). Weaknesses in the current system could be addressed through devolved management by interweaving the benefits of subsidiarity, stakeholder participation and regionalisation while avoiding the risk of renationalising fisheries policy. Accordingly it was suggested that Regional Fisheries Councils be given the responsibility and authority to make recommendations to the Commission on all aspects of fisheries management – resource conservation, fleet management and market regulation – within each of the regional seas. Membership of the Councils would include all member states with established fishing rights in the given regions and have a broad representational base (administration, science and stakeholder interests).

Broadly similar solutions were put forward by the UK Ministerial Review Group in 1996 for Regional Consultative Councils and in a joint policy statement from the UK's two fishermen's federations on Zonal Management: a new Vision for Europe's Fisheries[(2000)], though the latter's vision was for executive rather than advisory councils. The North Sea Commission, a voluntary association of local authorities from around the North Sea basin formed in 1989 to coordinate and articulate regional fisheries interests, also lent its support to the idea of regional management. The UK administrations, however, remained sceptical of anything more ambitious than ad hoc regional workshops (Symes, [2000b]) and beyond the UK active support for regionalisation was at best muted. In general, those member states anxious to gain access to more resources to offset the loss of fishing opportunities in non-EU waters or to satisfy the ambitions of more corporately organised fishing industries argued for the centralisation of decision making and a more open market in fishing rights. By contrast, those member states seeking a better balance of fishing opportunities for their domestic fleets within the existing framework of resource availability supported decentralised management. Both groups were, in their own ways, looking to protect their national interests.

Outcomes from the[2002] reform process were generally rather modest. The Commission's proposals had ultimately focused on familiar issues of resource conservation and fishing effort rather than institutional reform (CEC, [2002]). However, the new framework Regulation (COM 2571/2002) did make provision for the creation of Regional Advisory Councils (RACs) covering the five regional seas. With broadly based stakeholder representation, their role was to advise the Commission and member state governments on fisheries matters either in response to requests from those authorities or on their own initiative. It was, though, made clear that neither the Commission nor the member states would be bound by opinions received from the RACs. Their influence was, therefore, limited but the initial, albeit tentative, steps towards regionalising the CFP had been taken.

Gathering momentum

Despite only modest reforms in[2002], the seeds of regionalisation had been sown and arguments for a more radical rethink of the CFP quickly resurfaced. Several factors contributed to re-energising the debate on institutional reform: the deteriorating economic conditions in key sectors of the fishing industry; a sense that RACs represented 'unfinished business' and that the industry needed to take more responsibility for its own actions; and finally, new developments in marine/maritime management occurring within the EU.

Although there were some signs of recovery among key demersal stocks, management of the fishery was becoming increasingly complicated with a layering of regulation (quota, effort restrictions, catch composition rules). Operational difficulties were intensifying and the industry was becoming ever more frustrated by a policy that not only failed to deliver improved fishing opportunities but did so at very high economic and social costs including a haemorrhaging of social capital in terms of jobs, skills and knowledge (Scottish Government, [2010]).

It was always likely that in their early years RACs would exhibit uneven rates of progress due largely to different levels of preparedness. It soon became apparent in the Baltic and North Sea RACs in particular, where support for and experience of stakeholder cooperation at a regional level were already strong, that RACs were capable of providing valuable advice on a wide range of regional issues (see also Ounanion, [2012], this volume). In seeking to develop industry participation still further attention turned to the largely untested idea of objectives led (or results based) management. Under this approach the objectives, norms and targets would be decided at EU, member state or possibly regional levels while industry would set out detailed arrangements for meeting these criteria through annual or multi-annual fishing plans. The industry would thus assume much of the burden of proof for responsible fishing (Lassen et al[2008]).

Inside the Commission there were signs of a growing recognition of the relevance of a regional approach to marine related management issues. The makeover at DG Fisheries, involving a broadening of its remit to include maritime affairs, a name change to DG Mare and internal restructuring to position three regional directorates alongside a single horizontal directorate dealing with policy development and coordination, provided a clear signal. More importantly, the Marine Strategy Framework Directive ([2008]) and the Integrated Maritime Policy (2007) both acknowledged the need for a robust spatial framework, based on the regional seas, in which to plan and execute key policy objectives. Unlike fisheries where exclusive competence prevailed in the development of conservation policy, the environmental and maritime policy areas were subject to shared competence between the Union and member states and were dependent on cooperation between member states.

In [2007] Mike Sissenwine and David Symes were invited by DG Mare to prepare an independent critique of the CFP as part of an internal process of reflection prior to the third decennial review ([2009]–12). Among its recommendations Reflections on the Common Fisheries Policy (2007) placed an emphasis on relocating the CFP in the context of other emerging areas of marine governance, redefining and prioritising its objectives, and restructuring its institutional framework to capture the benefits of subsidiarity and stakeholder participation. By contrast, in looking to combat the unsustainable outcomes of the CFP, the Commission's own working paper on Reflections on the further reform of the Common Fisheries Policy ([2008]) laid rather more stress on achieving the industry's accountability for sustainable use of the public resource, rights based management and/or objectives led management. It was by no means clear how far devolved decision making and regionalisation had become part of DG Mare's received wisdom.

An enigmatic green paper

The terms of the debate on CFP reforms were set out in a Green Paper (CEC, [2009]). It was welcomed as a bold, imaginative and surprisingly radical document which focused attention on institutional change rather than attempts to repair parts of the existing machinery. In its own words it aimed to achieve 'a whole-scale and fundamental reform' and not 'another piecemeal, incremental reform' (p 5). In shaping the debate, the Green Paper directed attention towards what it considered to be 'the five structural failings', together with a number of other areas of concern for the future development of fisheries management in the EU (see Table 1). Of the five structural failings, two dealt with what one can term 'repair and maintenance tasks' (fleet capacity; enforcement). The remainder were more clearly aligned to the idea of 'doing things differently' by prioritising policy objectives, restructuring the decision making system and giving industry more responsibility for its actions.

Note: The principal issue dealing with devolved and regionalised management is shown in bold italics; other areas where t1:18 a devolved/regional framework would assist the definition and delivery of the objectives are shown in italics.

It was always the Commission's intention to use the Green Paper to stimulate the broadest possible debate on the future of the CFP by highlighting key areas for consideration rather than setting out a series of specific proposals. But when it came to issues of devolved governance and regionalisation, the Green Paper was decidedly enigmatic. Only by reading between the lines was it possible to discern the outline of a suggestion for devolving decision making in ways that might regionalise policy making, let alone any hint that regionalisation could become an essential vehicle for delivering a reformed CFP. Instead, it outlined two ways in which the burden of micromanaging the fisheries might be redistributed so as to create 'a clear hierarchy between fundamental principles and technical implementation' (p 10). The first was through the comitology procedure involving closer cooperation between the Commission, member states and the European Parliament in preparing policy proposals. The second, which came much closer to the idea of devolved responsibility, would mean 'relying wherever possible on specific regional management solutions implemented by Member States subject to Community standards and control', arguing that exclusive competence 'would not prevent implementation decisions being delegated to Member States, provided they are bound by decisions on principles at Community level' (p 10). Having hinted somewhat obliquely at a more regionalised approach, the Green Paper acknowledged that 'this delegation would need to be organised at the level of marine regions because fish stocks and shared ecosystems cover wide geographical areas and cannot be managed by individual Member States acting in isolation. Member States would therefore have to work together to develop the set-up required' (p 10–11).

Was this tiptoeing around the issue of regionalisation anything more than an attempt on the part of the Commission not to prejudge the issue, leaving it to member states to draw their own conclusions? Or was it a sign of intervention from above, evidence of divided opinion within the Commission or anticipation of legal pitfalls that could lie ahead? Whatever the reasons it was left to member state governments, the fishing industry and others to decipher the message and fill in the details of what the new decision making framework might involve.

Filling in the details

Many responses to the Green Paper appeared to assume that some form of devolved regional management would form part of the overall architecture of the reformed CFP. Each member state or stakeholder organisation had its own perception of what a devolved CFP might look like, yet scarcely any of the responses sought to describe its detailed structure. Similarly, several symposia held in the wake of the Green Paper's publication attempted to piece together an image of regionalised management from examples occurring elsewhere in the world and at varying geographical scales but without paying due attention to the unique geography and political structures associated with EU fisheries management.

Deciding the form of regionalisation would normally follow a two stage process of first agreeing the division of management responsibilities between the central and regional bodies, along lines similar to those shown in Table 2a, and then setting out criteria for designing the regional organisation (Table 2b). Two unpublished studies (Nordic Council of Ministers, [2009]; Raakjaer et al[2010]) offer this more structured approach. As the latter is considered in the following paper, only the findings from the former will be summarised here. Suffice it to point out that both studies were based on similar sets of governance issues and each postulates a range of alternative models before submitting them to different forms of evaluation so as to arrive at a final selection. The results are encouragingly similar.

Table 2

Regionalising theCFP

a) Division of responsibility

(i) The European institutions would be responsible for developing Community policy that

· sets out the principles and standards to be adhered to under a common fisheries policy;

· provides a clear statement of the biological and ecological objectives of management;

· describes a broad, long term management strategy including the setting of key reference points and long term targets for ensuring these objectives are met;

· outlines the mechanisms by which Community policy will be monitored and evaluated.

(ii) The role of member states, acting collectively and individually, will be to implement Community policy through:

· elaborating appropriate regional strategies for fisheries management in line with Community standards and targets;

· developing long term recovery and management plans for all major stocks within the region;

The regional organisation should be designed so as to ensure the full and effective collaboration of all relevant member states in achieving the following:

· delivery of the objectives, norms and targets set out in the Community fishing policy;

· efficient and effective use of limited scientific, human and financial resources;

· a sufficient opportunity for stakeholders to assert their knowledge, understanding and experience of the fisheries;

· a timely response to any changing circumstances affecting the region's fisheries; and

· binding agreements among all participating member states as to the actions required.

In his presentation to the Nordic Council symposium in October[2009], Symes describes four alternative approaches (Table 3), distinguishing between those that adhere to existing decision making arrangements (in-house; dispersal) and those that require a redistribution of responsibilities between the Commission and the member states (standing conference; reorganisation). Under scrutiny from a qualitative (and highly subjective) assessment designed to test their abilities to deliver the Green Paper's objectives and good governance and to meet practical considerations of costs, ease of implementation et cetera, the first two options failed on almost all counts. In arriving at a final choice, although option (D) would in all probability yield the optimum solution, it was the standing conference of member state administrations (C) that won through, largely on pragmatic reasoning and not least the question of conformity with the legal provisions of the Treaties. This should be seen as the de minimis solution for regionalising the CFP.

Table 3

Alternative Models of Regionalisation (Nordic Council of Ministers,[2009])

A. The in-house solution where DG Mare remains responsible for regionalised management but the roles of member states in shaping regionally specific measures are strengthened through the 'comitology' procedure. The Commission and member states continue to receive expert regional advice from RACs.

B. The dispersal solution reduces the distance between the Commission and the industry by relocating DG Mare's regional directorates within the regions to work alongside the member states' administrations, their expert advisers and representatives of the regions' fishing industries in developing regional management strategies. The decision making process remains unaltered, as does the role of RACs.

C. The administrative solution separates the functions of the Commission and member states by establishing regional standing conferences of member states' administrations meeting at regular intervals to interpret and implement Community policy without intervention from the Commission, Council of Ministers or Parliament. RACs continue to provide essential stakeholder advice.

D. The reorganising solution requires the creation of dedicated Regional Management Organisations (RMOs) with permanent secretariats and fixed abodes within the regions to give them a clear identity. RMOs would supersede existing RACs; their membership would be broadened to include member state administrations and their terms of reference widened to confer responsibility for developing regional management strategies in line with Community policy and making binding recommendations to member states, subject to approval by Commission, Council and Parliament.

Several important questions are left unanswered: how the new structures would tackle integration with other areas of marine management; the treatment of highly migratory stocks and other transboundary questions; and relations with third countries, inter alia. But the most crucial questions focus around the nature of involvement of the European institutions, especially with the introduction of co-decision making involving the Council of Ministers and the European Parliament, and exactly which responsibilities would be delegated to the member states.

Two variants of the standing conference model can be posited. In both instances the EU institutions retain the meta-governance functions of deciding the principles, objectives, norms and overall targets of the CFP and setting out a broad strategy for their achievement. Member states would agree the detailed regional approach for implementing this Community policy. Under variant (a), the 'upstream approach', member states having reached agreement at the regional level submit their policy proposals through the normal channels for co-approval by the Council and Parliament. The disadvantage of this approach is the risk of final decision making becoming politicised and protracted. Variant (b), the 'downstream' approach, entails a potentially more detailed set of instructions being handed down by the European institutions, with the member states agreeing a process of implementation without need for further approval by Council and Parliament before being put into operation. The price is the transfer of significantly less responsibility to the member states.

Assuming that output controls remain the cornerstone of the conservation policy, the Commission would retain its control over determining the level of TACs, with a move towards multi-annual TACs supplemented by harvest control rules, to avoid the disabling uncertainties that accompany the present annual review. Decisions relating to long term management plans, technical conservation measures, quota management, discard rules and the implementation of incentive based and ecosystem based approaches to management are best considered at the regional level and should therefore be delegated to the member states acting together within a regional framework. Anything less would prompt the question as to whether devolved or regional management was a prize worth winning.

Delivering the benefits of regionalisation

For most people, the primary purpose of regionalising the CFP is to rebuild the trust in fisheries management that has been largely dissipated over two decades of centralised, bureaucratic decision making located in Brussels. By bringing decision making much closer to those affected and with a more direct involvement of the stakeholders in the formulation and implementation of policy, it is hoped to foster a greater sense of shared ownership of the process that will enhance commitment to, and compliance with, the regulatory system.

There are more tangible benefits to be won from regionalisation. With the framework for fisheries management being developed at the regional level, long term management plans can be tailored to suit specific regional circumstances, yet with sufficient flexibility to allow for adaptive forms of management under changing ecological conditions. It should also allow more rapid progress to be made in implementing the ecosystem based approach in which not only is there a presumption against fishing activities that impair the sustainability of the region's ecosystem(s) but also where increasing understanding of ecosystem interactions is used to fine tune the use of technical conservation measures (gear regulations, minimum landing sizes, closed areas) to improve the effectiveness of fisheries management. Regional management can also provide a more robust framework for objectives led management in which different segments of the region's fishing industry contribute to the detail of management through multi-annual fishing plans designed to show how they intend to meet the targets and standards set at regional or EU level. Further down the line, agreements at regional level could pave the way for further rationalisation of fleet capacity, the harmonisation of national systems of quota management and the integration of fisheries management with other areas of marine policy.

Although regionalisation is to be seen as a means of delivering more effective management, it may come at a cost that some acolytes of the European project may find disturbing. With less uniformity of regulation throughout the EU fishing zone, could come the impression of a less level playing field that might heighten political tensions between regions. Moreover, there can be no guarantee that regional decision making will deliver the tangible benefits in all situations or at all times. There is always the risk that some member states will feel intimidated by collective bargaining at the regional level or seek to opt out of collective decisions that work to their disadvantage. However, there is no fundamental reason to believe that the willingness and ability of stakeholders from different member states to work together in the RACs to produce agreed solutions to particular problems cannot be repeated in the context of regionalised governance.

The denouement

With the publication in July 2011 of the Commission's formal proposals for reforming the CFP (CEC[2011b]), the EU has entered the closing stages of what many believe to be a crucial phase in the policy's development. Bringing to an end the 'phoney war' over the role of regionalisation conducted in an atmosphere of deepening uncertainty and growing concern that the Commission's initial commitment to radical institutional change was weakening, the focus of the debate now shifts to negotiations within and between the Council of Ministers and the European Parliament in a period of co-decision making that will determine the details of the new basic regulation governing the conduct of the CFP up to 2022.

What is already clear is that the 'fundamental and whole-scale reform' anticipated in the Green Paper is unlikely to materialise, with the move towards regionalising the CFP a likely casualty. Specific reasons for this apparent volte face are open to conjecture, though some elements of the case against regionalisation are more easily discernible. What is less clear are the likely outcomes from the process of co-decision, the extent to which the European Parliament or Council of Ministers will seek to change the emphasis of the CFP – either in the present form or as envisaged in the Commission's proposals – and the long term implications for the future of the CFP.

The Commission's proposals

Taken at face value, the Commission's proposalsc appear as a pale shadow of the initial aspirations set out in the Green Paper in[2009]. But there is a remarkable and puzzling discrepancy between the Commission's Communication (CEC[2011a]) explaining the overall package of reform and the actual draft regulation that translates the intentions into specific proposals couched in more austere legal terminology.

The Communication puts a decidedly positive spin on the intentions and, in a style reminiscent of the Green Paper, argues that 'The Commission proposes an agenda that is ambitious as regards regionalisation and simplification. EU fisheries legislation adopted centrally should focus on objectives, targets, minimum common standards and results, and delivery timeframes. While key decisions remain at EU level, Member States will have the flexibility to decide on other measures for fisheries management, under the supervision of the Commission, in full compliance with the previous EU law.' (CEC, [2011a], p 7).

The draft regulation, on the other hand, sets out more precisely the framework for the conduct of EU fisheries policies over the next decade. It covers a wide ranging agenda, including not only proposals for the conservation of marine biological resources – the specific area of policy for which the Union is granted exclusive competence – but also matters relating to access to resources, management of fishing capacity, control and enforcement, aquaculture and external policy inter alia. In style, it presents only an outline of the Commission's future intentions, containing little by way of explanation for, or detail of, the measures proposed. Many of the proposals presented in outline will become the subject of more detailed secondary legislation.

Under the heading of 'conservation of biological resources', the proposed actions are divided into Union measures, regionalisation and national measures very much in line with the anticipated division of responsibility for decision making between central, regional and national levels of authority – and in that sense the draft regulation maintains the promise of greater delegation of powers. In practice, however, it appears that the intention is for the Commission to retain control over the content of multi-annual plans – the key instrument of conservation management – including setting the objectives, framing the technical measures to achieve MSY, mitigation of environmental impacts and reduction of discards, thus leaving very little scope for meaningful delegated responsibility. Under the heading of regionalisation it acknowledges that 'Member States may be authorised to adopt [additional] measures in accordance with multi-annual plans which specify the conservation measures for vessels flying their flag' (Article 17,1). Not only is the draft regulation stripped bare of all reference to substantive proposals for how the so-called 'regionalisation' might be developed but even a simple reference to member states cooperating at fishery level to ensure compatibility of actions, appearing in an earlier draft, has been removed.

Regionalisation is not the only casualty. From the Green Paper's checklist of improvements to the existing policy, there is no clarification of the CFP's objectives, no indication of the greater involvement of the fishing industry, no suggestions as to how a proactive ecosystem based approach to management might be developed and no clear signals as to how the new regulation will assist the integration of fisheries, marine environmental management and maritime policies. One of the few survivors from the checklist is the introduction of rights based management at the national level in the form of 'transferable fishing concessions'. Rather than ease the burden of micromanagement through effective decentralisation of decision making, the reform package appears to consolidate the Commission's powers and to remove the member state's right to determine its own system of quota management.

The contrasts between the rhetoric of the Commission's Communication and the realities of the draft regulation are stark and difficult to reconcile. While the Communication appears to signal that a path has been cleared for member states to cooperate at a regional level in pursuit of sustainable resource management, the draft regulation has removed all the signposts. Opportunities for the delegation of decision making responsibilities – the key to decentralisation and simplification of the regulatory system – are severely limited, apparently confined to member states acting individually rather than collectively and subject to default action by the Commission.

Seeking explanations: 1. legal constraints

Explanations for an apparently bi-polar presentation of the Commission's proposals for reform are difficult to find. The uncompromising nature of the draft regulation is possibly the easier to explain by reference to the likely intervention of the Commission's legal services on 'constitutional' issues. It has long been recognised that fundamental reform of the CFP's institutional framework would encounter major obstacles arising from the apparent immutability of the European Treaties. Three interrelated issues lie at the heart of the legal challenge: the threat to the exclusive competence of the Union; the extent to which the powers of the European institutions can be delegated to member states; and the failure of the Treaties to recognise regions or regional organisations as competent authorities in formulating or implementing Community policy. Initially, DG Mare sought to get round these problems by a) redefining the boundaries between formulating and implementing conservation policy; b) proposing to delegate certain, unspecified responsibilities to member states under the guise of implementation tasks; and c) insisting that these delegated responsibilities could only be properly discharged by the member states acting in collaboration with their regional neighbours (Commission, [2009]: 10–11).

In looking to give form and structure to this approach without contravening the established constitutional rules, the low key option of a standing conference of member states described earlier in this paper appeared to answer the legal objections. The standing conference makes no pretence of having a separate legal identity. It is simply an extension of the administrative arm of the member states that make up its membership. It makes no claim to any form of autonomy in recommending, enacting or implementing fisheries policy and therefore poses no threat, legal or otherwise, to the present structures of decision making at either the European or member state levels. The Commission's legal advisers, however, appear to have taken the view that any substantive expression of regionalisation is contrary to the provisions of the Treaties and poses a potential threat to the Union's authority in matters relating to fisheries policy.

Seeking explanations: 2. political opportunities

The persistence of a bullish portrayal of the reform agenda in the face of the somewhat emasculated set of proposals in the draft regulation is, by contrast, more baffling. The gradual leaking of the contents of the draft regulation served its purpose by defusing any element of surprise and dissipating some of the anger at the apparent lack of progress in reforming the CFP. Member state representatives and industry leaders gave a cautious welcome to the promise of a more decentralised decision making but were bemused by the lack of detail on key issues, including regionalisation. They were also somewhat surprised by the Director General's assertion that CFP reform remains wide open (Fishing News, 2011) intimating that the final package of reform will be heavily influenced by the positions taken by member states within the Council of Ministers and by elected representatives in the European Parliament. Will either or both parties have the appetite for such a challenge and can they find the means of reaching an agreement on reinvigorating the reform process?

Both parties will first need to establish their own positions before attempting to reach common ground through co-decision. Member states clearly have different interests, priorities and ambitions for a reformed CFP. Within the Council, three issues will help to shape the outcome: the alignment of member states around the overall need for reform of the CFP; their alignments on particular issues; and the extent to which a final position can be achieved through mutual agreement or a compromise between conflicting opinions.

As on previous occasions, some member states will be unwilling to embrace the need for major change. In some cases this will have little to do with fisheries per se but a concern to avoid the risk of undermining the broader status quo. This group will probably include a number of prominent players on the larger stage of EU politics as well as many small countries with little or no direct interest in marine fisheries. The two main protagonists are likely to be Spain and the UK, each leading campaigns for major reform but in significantly different directions, with Spain arguing for more open competition in access to fishing rights across Europe and the UK favouring less central control and more delegated responsibility. How other member states will finally coalesce around these two positions and the question of regionalisation is unknown. So too is the prospect of repeating the polarisation of opinion between northern and southern Europe that did much to neutralise the[2002] reforms (Hegland and Raakjaer, [2008]).

The fault lines of opinion on fisheries issues within the European Parliament are much more difficult to discern. Potentially the most controversial political issue is the proposal to compel member states to introduce systems of rights based management in the form of transferable fishing concessions. Such a proposal will cause deep divisions both within and between member states and, in the context of the European Parliament, between different political factions. The issue of regionalisation is less likely to stir the emotions, and precisely how the large numbers of MEPSs – the majority of whom have no constituency interest in fisheries – will be persuaded to form an opinion is unclear. It will be largely down to the Parliament's Fisheries Committee to provide a clear lead, though membership of the committee will itself be exercised by conflicting opinions.

In the context of fisheries, co-decision is unknown territory. This will be the first major occasion when the European Parliament is called upon to exert its influence over fisheries policy as a result of powers granted to it under the Treaty of Lisbon. Whether Parliament as a whole will choose to flex its muscle and take issue with the Commission's proposals (or with the opinions of the Council of Ministers) is also at this stage unclear. The risks of co-decision surround the nature of political compromise where some worthy causes may be sacrificed in pursuit of particular ambitions. Where compromise is involved a further blunting of the edge of radical reform seems inevitable. So, while in the final political process CFP reform remains quite literally wide open, at this stage nothing can be guaranteed.

What of the future?

If, as seems likely, the Commission's proposals for modifying the present decision making process fall short of a genuine regionalisation of the CFP, the issue is unlikely to go away. Regionalising the CFP is intended not as an end in itself but a means of delivering better, customised and more effective fisheries management. The failure to create a robust regional framework for fisheries management will cause collateral damage to other areas of policy reform. It will require creative thinking within DG Mare to ensure that maintaining the status quo in respect of decision making does not simply buttress the outmoded command and control policy making that has largely failed to guarantee sustainable fisheries.

But does one need a new basic regulation enshrining the principles of devolved and regionalised fisheries management in order to promote greater sensitivity towards regional differences that characterise the EU's fishing zone and ensure a more regionally integrated approach to managing the living resource of the seas around Europe? Perhaps not, though it would be by far the most sensible way of doing things. The scope for formal action within the 'new' basic framework is limited. The Commission might choose to deploy the comitology procedure involving close collaboration with the European Parliament and relevant member states in developing the multi-annual plans and technical frameworks for particular fisheries to ensure greater regional specificity. The Commission (CEC[2011a]) has also promised to extend the role of the RACs (now reduced in name to Advisory Councils), though in what direction is not yet clear. What really matters, however, is whether the Commission is prepared to give greater weight to the advice received and to act upon the Advisory Councils' recommendations.

Alternative action, outwith the framework of the new regulation, could come through a strengthening of regional stakeholder organisations to pressure member state governments on issues of regional importance; these could work effectively in areas like the semi-enclosed Baltic and North Seas. Or it might be that other policy areas more in touch with public opinion – marine environmental management, for example – will be able to persuade fisheries managers to adopt a more openly regional approach. On the other hand, it may require a further decade of centralised micromanagement, doing little to remedy the underlying problems of the current approach, to force a further review of the issue in 2022. Despite the legal setbacks, regionalising the CFP clearly remains a work in progress.

Conclusions

This paper has traced the evolution of regionalisation from an academic concept to a realistic objective in the context of EU fisheries management and a substantive project for the 2012 reform. It ends on a note of frustration, no doubt shared by many in DG Mare, that regionalising the CFP will be decided on legal and procedural grounds rather than from a perspective of good governance and what is best for the fisheries. On the positive side, the latest review of the CFP suggests widespread, though not universal, approval among member states for the decentralisation of decision making in the implementation of policy together with significant levels of support for regionalisation, more especially in northern Europe. But this must be set against the continuing weakness of fisheries as an issue within the wider political arena and the need to safeguard the authority of the European institutions that evidently lack the tensile strengths of a federal system of government.

Many of the problems facing fisheries management in the EU can only be addressed fully at the level of the individual fishery and with the direct involvement of the relevant member states and their fishing industries, working together in a regional framework. The means of achieving this collaboration must be clear, robust and transparent. It must not be allowed to fail for lack of an explicit form and a tangible structure.

Endnotes

a Although in principle the aims and objectives of the CFP apply to all fishing activities undertaken within the EU fishing zone, fisheries policy has been largely driven by north European and Atlantic fishing interests. In practice, therefore, the basic regulatory system adopted by the CFP, involving total allowable catches (TACs) and catch quota, has applied only to fisheries in the north east Atlantic and its tributary seas. Fisheries management in the Mediterranean, based mainly on technical measures, has been conducted through the General Fisheries Council for the Mediterranean, of which the EU is a member.

b Following the inauguration of the European Community in 1964 involving Belgium, France, Germany, Italy, Luxembourg and the Netherlands, there were six subsequent enlargements: in 1972 (Denmark, Ireland and the UK); 1981 (Greece); 1987 (Portugal and Spain); 1996 (Austria, Finland, Sweden); 2002 (Cyprus, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia); and 2007 (Bulgaria and Romania). The significance of the final enlargement was the extension of the CFP into the Black Sea.

c The Commission's proposals for reform of the CFP are set out in three key documents: a Communication to the European Parliament, the Council the European Economic and Social Committee and the Committee of the Regions (CEC, [2011a]), setting out the overall intentions, together with two legislative proposals – the first for reform of the CFP (CEC, [2011b]) and the second for the common organisation of the markets in fishery and aquaculture products (CEC[2011c]). The latter includes the objectives and functions of the Producer Organisations which play an important role in the implementation of the CFP through the planning and marketing off their members' catches.

Declarations

Acknowledgements

I am grateful to Poul Degnbol, Troels Hegland and Jesper Raakjaer (Aalborg University) for their very helpful and informative comments on an earlier draft of this paper.

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